Common law dictates that individuals possess autonomy and self-determination, which encompass the right to accept or refuse medical treatment. Management of medical treatment can be complicated in situations when the ability of the patient to make reasonable decisions is called into question. Our legal system endorses the principle that all persons are competent to make reasoned decisions unless demonstrated to be otherwise. This review will discuss the standards upon which capacity and competency assessments are made. Practical suggestions are offered for clinicians to employ in patient interviews conducted to assess capacity. Issues related to advance directives, surrogate decision making, guardianship, and implied consent are also discussed. The role psychiatric consultants take in capacity assessment can assist the primary care physician confronting the complexities encountered when attempting to treat the incapacitated or incompetent patient.
The first 10 amendments of the U.S. Constitution, known as the Bill of Rights, were outlined to protect citizens from infringement on their basic freedoms, e.g. freedom of speech, the press, religion. A corollary to the basic foundation established by the Bill of Rights is the common-law principle of self-determination that guarantees the individual's right to privacy and protection against the actions of others that may threaten bodily integrity. 1 An extension of self-determination includes the right to exercise control over one's body, for example, the right to accept or refuse medical treatment. It is expected that when one freely accepts or refuses treatment, he or she is competent to do so, and is, therefore, accountable for the choices made. However, concerns naturally arise when an individual is deemed to be incompetent, specifically, to protect the patient from the consequences of imprudent decision making. An individual determined to be incompetent can no longer exercise the right to accept or refuse treatment.
Competency is a legal term referring to individuals “having sufficient ability… possessing the requisite natural or legal qualifications” to engage in a given endeavor. 2(p257) Unfortunately, this definition is a broad concept encompassing many legally recognized activities, such as the ability to enter into a contract, to prepare a will, to stand trial, to make medical decisions, and so on. The definition, therefore, must be clarified depending on the issue in question. Simply put, competency refers to the mental ability and cognitive capabilities required to execute a legally recognized act rationally. 3 The determination of incompetence is a judicial decision, i.e. decided by the court. An individual adjudicated by the court as incompetent is referred to as de jure incompetent. After determining that the de jure incompetent cannot make prudent decisions in his or her own best interest, the court will assign a guardian to make decisions on the person's behalf. 4, 5
Because an adjudication of incompetency effectively denies an individual autonomy to make decisions, such court cases become labor intensive. An individual is presumed to be competent unless demonstrated to be otherwise. The standard of proof required for judicial finding of incompetency is that of “clear and convincing evidence.” 6 This standard of proof, based on evidence presented by licensed health care practitioners and others, is set at a standard between the high level of proof required for criminal convictions, i.e. “beyond a reasonable doubt,” and the lowest standard of “preponderance of the evidence.” 7
To ensure that individuals retain as much autonomy or self-determination as is legally possible, the court makes a determination of one's competence in a task-specific manner. For example, one can be determined to be incompetent to execute a will, but may be deemed competent to make treatment decisions. Whenever possible, efforts are made to adjudicate incompetence in this manner. However, there are statutes that allow for the determination of general incompetency. 8, 9 In such cases, individuals who are in persistent vegetative states, severely demented, severely mentally retarded, or actively psychotic would be considered incompetent generally, i.e. incapable of any rational decision making while suffering from the prevailing impairment.
The cumbersome and potentially expensive efforts to undergo a legal proceeding are often prohibitive. The delays involved in arranging for and undergoing a formal court proceeding can add substantially to the cost of care of a hospitalized patient and may incur risks to the patient's health. 10 Hence, it is not surprising that many individuals who are deemed incompetent to make treatment decisions are not subjected to an adjudication of incompetency.
The term capacity is frequently mistaken for competency. Capacity is determined by a physician, often (although not exclusively) by a psychiatrist, and not the judiciary. Capacity refers to an assessment of the individual's psychological abilities to form rational decisions, specifically the individual's ability to understand, appreciate, and manipulate information and form rational decisions. The patient evaluated by a physician to lack capacity to make reasoned medical decisions is referred to as de facto incompetent. i.e. incompetent in fact, but not determined to be so by legal procedures. Such individuals cannot exercise the right to choose or refuse treatment, and they require another individual, a de facto surrogate, to make decisions on their behalf.
One of the most vexing issues facing physicians is the management of medical treatment when an individual's rational decision-making ability is questionable. Requests for psychiatric consultation by primary care physicians to assess capacity to make treatment decisions have been increasing. 11 A retrospective chart review 12 of consultation requests made to psychiatrists in a municipal general hospital and a university-affiliated hospital found that as many as one fourth of all consultation requests were to assist with deciding issues of capacity. Earlier studies found lower rates of referral to psychiatric consultation services for capacity assessment, ranging from 3.3% to 15%. 13–15 The increase in consultation requests for capacity assessment suggests that physicians may be uncertain about, and perhaps overwhelmed by, the complexities encountered when addressing issues pertaining to medical decision making.
Protection of the physician naturally arises when an individual freely chooses a course of treatment rationally and with full knowledge of the potential consequences and untoward events. It is not surprising that the frequent requests for psychiatric consultation in matters of competency are often based on the physicians' perceived need to “cover themselves” from a medical-legal perspective. 12 The physician is not automatically authorized to perform medical treatment on the behalf of a patient deemed incapable of making reasoned medical decisions. 16 Similarly, a physician who withholds treatment from an incompetent patient who refused treatment could be liable for any untoward events that occurred to the patient if that physician had not taken reasonable steps to obtain some other legally valid authorization for treatment. 17 Thus, when carefully explored and appropriately employed, the capacity assessment serves to protect the physician rendering treatment. The issues of capacity assessment in medical decision making are not legally pursued merely to assert the value placed on liberty of individual citizens for its own sake.
WHEN IS THE QUESTION OF CAPACITY LIKELY TO BE ENCOUNTERED?
Requests for psychiatric consultation to assess a patient's capacity arise most often for patients who refuse treatment that the physician deems rational. 15, 18 Often, medical professionals feel that a patient who refuses a recommended treatment is incompetent until proven otherwise. Such a stance is inaccurate by legal (and moral) standards and is considered by some to be paternalistic. 19 It is the right to self-determination in treatment, and not the mere refusal of the proposed treatment, that warrants an assessment of the patient's capacity to make reasoned treatment decisions. 20
Empirically derived data on treatment refusal found that most refusals were based on disruptions in the patient-doctor relationships, e.g. communication problems between patient and doctor, lack of trust of the treating source, and psychopathologic factors. 21, 22 In the harried pace of most medical centers, patients may be inclined to feel as if they were an inconvenience or feel rushed, slighted, and even neglected. Treatment refusal can be a means of securing attention from one's physician or an expression of hostility for perceived mistreatment. 23 Not surprisingly, many decisions to refuse the proposed treatment were often reversed some time later. 21 Enlisting the support of psychiatric consultants under such circumstances may be worthwhile to facilitate dialogue and reduce any impediments to treatment. Conversely, a request for psychiatric consultation may fuel the adversarial relationship, particularly if patients are apt to perceive such a consultation request as a statement that they are somehow mentally ill or “crazy.” Therefore, it should be made clear to the patient that the psychiatrist's role is to clarify the patient's wishes and interests, and is in no way intended to stigmatize the patient or otherwise coerce the patient into agreement with the treating doctor.
In reality, every aspect of health care, including the most benign events, such as a blood draw or physical examination, is subject to self-determination by the patient. Concerns about capacity to make reasoned decisions around treatment are most likely to be encountered in 2 types of situations ( Table 1 ). If a patient objects to a treatment with a highly favorable outcome and/or low risk or assents to an intervention with unfavorable outcomes and/or high risk, then questions regarding capacity are likely to be raised. 1 In such situations, concerns about the reasoning capacity of the patient warrant formal assessment
(and documentation) of capacity, involving relatively high standards (described below). On the other hand, when the patient consents to a treatment intervention with a likely favorable outcome and/or low risk, or elects to forgo a treatment which incurs great risks or has questionable or unfavorable outcomes, concerns about decision-making capacity are less apt to be raised. In such cases, a low standard for determining capacity is undertaken, i.e. the capacity of the patient is assumed as long as he or she displays reasonable, nonbizarre behavior; has goal-directed thought processes; has a memory that is reasonably intact; and has not been deemed incompetent by judicial decision. 1, 24, 25
Standards for Capacity Assessment as a Function of atient Decision and Benefits/Risks Associated With an Intervention a
STANDARDS FOR ASSESSING DECISION-MAKING CAPACITY
Established by state law, the standards relevant to the assessment of decision-making capacity can vary from jurisdiction to jurisdiction. Consultation with a psychiatrist with expertise in capacity assessments or an attorney may be required to clarify those legal standards for determining capacity and competence required in one's area of medical practice. Nonetheless, the abilities that most consistently appear to be relevant to a patient's capacity to make reasoned decisions regarding treatment fall into 4 categories. 26–28
Ability to Evidence a Choice
This component is the least stringent in the assessment of decision-making capacity, but it is generally held that a sign of competence to make reasoned choices is the ability of the individual to reach a decision. Individuals failing to meet this criterion either are unable to express a preference or are unable to make their wishes known effectively. This standard does not factor the specifics of the decision or how the decision was arrived at, but merely whether or not a decision was made. In addition, this concept requires the ability to maintain and communicate stable choices long enough for them to be implemented. Hence, an individual who rapidly changes his or her decision from moment to moment and a psychotic patient who is mute are deemed unable to evidence a choice. Furthermore, individuals with impairment of consciousness (e.g. in a delirious state) or those with significant thought disorders (e.g. psychotic), deficits in short-term memory (e.g. Korsakoff dementia), or lability that impairs decision making (e.g. mania) are likely to have difficulties with the ability to evidence a choice.
Therefore, the capacity to evidence a choice can be tested quite simply by asking patients who have been informed about their medical condition and proposed interventions to respond to what they have just heard. The stability of the choice that they express can be examined by simply rephrasing the same question some time later. 26 Certainly, patients have the right to change their mind, hence a reasonably justifiable alteration in one's decision does not necessarily constitute an inability to evidence a choice.
Ability to Understand Relevant Information
This component is adhered to by every jurisdiction. This standard goes beyond evidencing a choice by assessing the individual's ability to comprehend information disclosed by the treating physician in the informed consent process. Expressing a preference about a treatment decision is meaningless if patients cannot understand what they are deciding. It stands to reason that an individual who cannot understand what he or she has been told about a proposed treatment or diagnostic intervention is not capable to decide to assent or refuse. The ability to understand relevant information will obviously be affected by patients who display deficits in attention span (e.g. significant attention deficit disorder, anxiety, or mania), intelligence (e.g. significant mental retardation), and memory (e.g. significant dementia or delirium). The ability to understand relevant information can be best assessed by asking patients to disclose their understanding of the proposed treatment intervention or diagnostic procedure. It is best to ask them to paraphrase it. 26
Although the ability to understand relevant information is more stringent than the ability to evidence a choice, this standard does not factor in patients' abilities to weigh the options before them and understand the implications the decision has for their lives. Toward this end, a higher standard of capacity is employed, i.e. appreciation.
Ability to Appreciate the Situation and Its Likely Consequences
Beyond the mere comprehension of factual information about a proposed treatment or proposed diagnostic intervention, this standard assesses whether the patient comprehends what the proposed intervention means for him or her. 29 Here the information that is being assessed is whether the individual understands what having the illness means, including its course and likely outcomes. In addition, the probable consequences of treatment or its refusal and the likelihood of each of a number of consequences, such as undergoing treatment versus forgoing treatment versus alternative treatments, are assessed.
The concept of appreciation is a rather individualized component of the capacity assessment. Assessment of the patient's ability to appreciate is not based upon the comparison of the patient's expressed wishes against the standard of what most reasonable persons would endorse in that situation. It does involve an appreciation of how the individual values each risk and benefit of the proposed treatment in question. Severe denial as a defense mechanism, delusions, or other psychotic processes can impair appreciation. 30, 31
Unfortunately, this standard of capacity assessment is more subjective than the previously mentioned standards since it involves an assessment of whether the individual can understand the implications of his or her decisions and whether he or she is, in effect, willing to live with the consequences of that decision. Such decisions are, for the individual, quite weighted, involving values assigned to potential consequences and issues related to quality of life. Hence, for one person, the choice of undergoing a procedure that can result in paralysis may be worthwhile over an option of death, whereas for another, death may be preferred over life as a quadriplegic. The assessment of the individual's capacity to appreciate is, therefore, based upon an examination of the ability of the individual to weigh various treatment benefits and risks against personal values and choices. If a patient is able to do so, without impediments from misunderstanding, cognitive deficiency, or psychopathologic states, he or she has capacity. Nonetheless, the subjective nature of decision making at this standard of capacity calls forth an assessment of the ability to rationally decide. Hence, a fourth, and final, standard of capacity assessment is often commonly invoked, i.e. the rational manipulation of information.
Ability to Manipulate Information Rationally
This component refers to the patient's general ability to employ logic or rational thought processes to manipulate information. If patients are unable to use logic and unable to weigh information in a rational manner to reach a decision, they will therefore be unable to compare the benefits and risks of various treatment options or interventions proposed to them. This component does not focus on the ultimate decision that the patient makes, but rather the process with which he or she arrives at decisions. Therefore, the physician examines the ability of individuals to reach a conclusion based on the initial premises with which they start. Conditions influencing logic include psychosis, delirium and dementia, severe mental retardation, severe anxiety, depression, and mania.
Often, psychiatrists will conduct a mental status examination, such as the Folstein Mini-Mental Status Examination, 32 the Short Portable Mental Status Questionnaire, 33 and the Cognitive Capacity Screening Examination, 34 to have a more formal measure of the patient's ability to manipulate information. Such tests measure cognitive abilities, but not decision-making capacity. Scores yielded by such instruments provide an indication of severity of dementia, but cannot yield a score for and lack sufficient sensitivity for decision-making capacity. 35, 36 It is possible that an educationally disadvantaged person scoring poorly on the Mini-Mental Status Examination or alternative test can retain an ability to make treatment decisions, while a highly educated person adept at responding to the test's questions can fail to make prudent treatment decisions. 37 Dementia and cognitive deficits, e.g. mild mental retardation, may not necessarily preclude decision-making capacity. 38
Formal measures of cognitive ability fail to take into consideration other features important in the ability to manipulate information. These include disturbances in thought form (i.e. circumstantial or tangential thought process), delusions, and illusions or hallucinations. The behavior of the patient, relevant mood states, stability and appropriateness of affective states, thought form and content, and perceptual disturbances must be carefully documented when a capacity assessment is conducted.
THE CAPACITY EVALUATION
A capacity assessment essentially determines the validity of a patient's decision to undergo or forgo a particular proposed treatment. A physician who desires a reasonable guide for presenting information to a patient about the medical condition and proposed treatment interventions can refer to the lines of inquiry presented in Table 2. Responses to inquiries should be systematically recorded in the medical record, preferably in quotation marks. In the event a question is raised about the capacity assessment—what was assessed and how—it is also advisable that the interaction with the patient is witnessed and the documentation in the medical record countersigned by the witness. Failure at any component of this line of inquiry would mean that the individual does not have the capacity to make reasoned decisions regarding the proposed medical treatment.